There are 125,000 people named David Smith. LexisNexis didn't run a middle name.

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Getting a new job is hard enough these days, and it's even harder when your prospective employer thinks you're a convicted criminal, even though you're not.

And if you have a name like David Smith, the odds increase that you'll be mistaken for a convict because so many people named David Smith are out there. Exacerbating the situation is when background check giants like LexisNexis Screening Solutions claim they should be forgiven for bungling a background check because they were following "industry standards." And the industry standard, LexisNexis says, means it doesn't always have to run a middle name through the system—even when there are some 125,000 people with the name "David Smith" in the United States.

That was, in part, LexisNexis' defense to a lawsuit brought by a man named David Alan Smith. Smith claimed LexisNexis was willful and negligent when the company erroneously fingered him as a convict. He also claims LexisNexis violated the Fair Credit Reporting Act.

Smith was applying to be a delivery driver for Great Lakes Wine and Spirits in 2012. As a condition of being a driver, his prospective Michigan employer required a background check. LexisNexis conducts some 10 million background checks per year and claims 99.8 percent are never disputed.

To get the background check done, Smith provided Great Lakes with his first, middle, and last name, Social Security number, driver's license number, date of birth, sex, street address, and phone number. Great Lakes did not provide LexisNexis with Smith's middle name, however.

Here's what happened, according to a recent decision (PDF) by the US 6th Circuit Court of Appeals:

Lexis searched its database for criminal records that matched Smith’s first name, last name, and date of birth. The search returned two sources—Bay County, Florida Circuit and County Courts, and the Florida Department of Corrections—as having criminal records for a David Smith born on March 12, 1965. This, however, was David Oscar Smith, not the David Alan Smith who applied for the job with Great Lakes. The records were for David Oscar Smith's uttering a forged instrument. Because Lexis did not receive a middle name from Great Lakes, it could not exclude the middle name "Oscar" from the results. The criminal records did not contain a Social Security number, so Lexis could not exclude them on that basis. Because the criminal records matched Smith's first name, last name, and date of birth, Lexis included them in the report it provided to Great Lakes.

What's more, the credit report LexisNexis obtained on Smith listed him as "David A. Smith." LexisNexis, however, claimed there "was nothing unreasonable in LexisNexis not cross-checking information in a criminal background report and information in a separate credit report."

After he was denied the delivery job, Smith disputed the criminal background check. LexisNexis figured out its bungle, and corrected the background report. Because of the mishap, Smith was delayed six weeks before he could start the delivery job.

Smith sued (PDF) LexisNexis, claiming a breach of the Fair Credit Reporting Act (FCRA) for allegedly failing to follow reasonable procedures that would assure accuracy in the information it reported to Great Lakes. He also maintained that he was "down in the dumps," "depressed," and that he and his wife went into the financial red zone immediately following the mishap.

A federal jury voted for Smith and found that LexisNexis negligently and willfully violated the FCRA. The panel awarded Smith $75,000 in compensatory damages, in addition to $300,000 in punitive damages. The trial judge reduced the punitive damages to $150,000, but declined to disturb any other part of the verdict.

LexisNexis appealed, arguing that no "reasonable jury" could conclude that LexisNexis either negligently or willfully violated the FCRA. LexisNexis also argued that it exceeded "industry standards" used by other credit reporting agencies (CRAs).

The process and procedures that LexisNexis uses for running and reviewing criminal background reports meet or exceed industry standards—i.e., LexisNexis' procedures for collecting bulk data files for its database, requiring personal identifying information, and matching and reporting criminal records for criminal background checks are the same as or more rigorous than procedures used by other CRAs.

Lexis said (PDF) it requested that the liquor company provide a middle name, too.

The trial evidence does not, as a matter of law, support the finding that LexisNexis failed to follow reasonable procedures to assure maximum possible accuracy. LexisNexis' procedures met or exceeded industry standards, its consumer dispute percentage is extremely low and, especially important, other than this case, there is not one instance in the trial record that the failure to require a middle name—rather than request a middle name (in this case, LexisNexis requested a middle name but Great Lakes did not provide it)—produced a criminal background report with information inapplicable to the intended subject. Indeed, the trial evidence established that LexisNexis' procedure of requesting, but not requiring, a middle name is reasonable because many people do not have a middle name or have more than one middle name. Far more reliable is LexisNexis' procedure of requiring a date of birth. Furthermore, there was nothing unreasonable in LexisNexis not cross-checking information in a criminal background report and information in a separate credit report.

The appeals court upheld the negligence finding but discarded the willful finding, which nullified the $150,000 in punitive damages.

In upholding the negligence finding, the three-judge appellate panel noted that the law requires LexisNexis and other credit reporting agencies (CRAs) to "follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates."

According to the unanimous court:

"David Smith" is an exceedingly common first-and-last-name combination—to the tune of over 125,000 individuals living in the United States. The jury could conclude that a reasonably prudent CRA, when presented with such a common name, would have required additional identifying information—like a middle name—to heighten the accuracy of its reports. The fact that requiring a middle name is an inarguably reasonable procedure (considering Lexis already had a field for middle names on the form that Great Lakes filled out) is what tips the scales against Lexis. Moreover, because the Florida criminal records for David Oscar Smith did not contain a Social Security number, Lexis' use of Smith's Social Security number would not have helped. Thus, although there is evidence that Lexis attempted to ensure that its reports produced a very low rate of false positives, there is sufficient record evidence supporting the jury's conclusion that Lexis' failure to require a middle name constituted negligence.

The court noted that the negligence was increased because the company's credit report it had on Smith was of the name "David A. Smith." The criminal records it had were of "David Oscar Smith."

"At the time Lexis provided the report to Great Lakes, Lexis had within its possession a credit report from Equifax that named 'David A. Smith' as the subject," the court ruled. "Lexis could have cross-referenced this name with the name on the criminal records, which was 'David Oscar Smith.'"

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David Kravets
The senior editor for Ars Technica. Founder of TYDN fake news site. Technologist. Political scientist. Humorist. Dad of two boys. Been doing journalism for so long I remember manual typewriters with real paper. Emaildavid.kravets@arstechnica.com//Twitter@dmkravets

151 Reader Comments

My name is "Kevin Jones" and this happens every time I apply for a job that requires some kind of background check. Even with my middle name included, it occurs. It has definitely slowed down the hiring process for me.

I'm glad it's not just me, but I'm also disappointed this is happening to so many people.

Smaller employers also sometimes do "DIY" background checks where they just go to some website that scrapes public information. Those websites are careful to say you shouldn't make hiring decisions based on the results, but many do anyway.

Well just conducting a name search seems kinda bad here (country in EU) we have personal identification numbers to prove whom we are and in the cases where criminal background might be important we (the applicant for the job) have to supply a police report that we request ourselves straight from the police...

But then there's now-days more employers look at social media witch well with a common name can do things like in this article... Luckily for me the five or so people with my name isn't that active or "bad" on social media and I don't think any of them have my middle name...

I personally agree with the initial ruling that included punitive damages, since as stated Lexis had information (the middle initial) that conflicted with the data they reported (with middle name "Oscar"). I'm not a lawyer, though, so I don't know what the standard is for "willful" -- someone in the company noting the discrepancy but the report being sent out anyway?

No surprise here, it has always been quantity over quality for companies that process high volume of reviews/checks. Or if the department handling the requests has a small number of employees. Gotta meet that SLA.

I guess that's a reason to be thankful for having an extremely rare name. Even with a common first name, my family name is so rare that there are, as far as I have been able to tell, 3 people with my first and last name worldwide (and of course, including the middle name drops it to just me).

I personally agree with the initial ruling that included punitive damages, since as stated Lexis had information (the middle initial) that conflicted with the data they reported (with middle name "Oscar"). I'm not a lawyer, though, so I don't know what the standard is for "willful" -- someone in the company noting the discrepancy but the report being sent out anyway?

mmm i kinda agree with both i see the punitive as good since they didnt require it but at the same time great lakes has a small part of this for not giving all the informationhowever i also believe it should have been willful as well due to them not going back to them and saying the report was inconclusive due to the lack of middle name and for not cross checking the information.

One does have to love the lame excuse of using "industry standards" as a defense. Who sets the standards? Usually, "industry" itself. That's the whole, broken, "self-regulating" bullshit they keep trying to say is better than clear government-created regulations.

I'm not going to say the government gets it right all the time (because even they screw it up), but letting industry regulate itself is pretty much equivalent to giving the Fox a key to the hen house.

I suppose wolves are adhering to "industry standards" by eating the sheep.

Great Lakes (the employer) had the middle name but did not provide it to LexisNexis upon their request. Was the "request" was merely an entry spot on paperwork or on a web form, or did they have someone contact Great Lakes?

I had a similar situation, but in my case a background check for my name returned a woman in Illinois, because the female version of my name just tacks on le at the end, and whoever did the background search didn't check it over.

So I got a phone call from my prospective employer asking when I was convicted of a marijuana-related misdemeanor in Quincy, IL. I had to call the circuit court, the county sheriff, and the city police dept. and have them fax in affidavits that said I had never been arrested or convicted of any crimes in that city. It was a long and painful process, and it tainted the hiring team against me just because once they were told I was a felon, they believed I was even after I showed them proof I was not.

Well just conducting a name search seems kinda bad here (country in EU) we have personal identification numbers to prove whom we are and in the cases where criminal background might be important we (the applicant for the job) have to supply a police report that we request ourselves straight from the police...

The Social Security Number is, essentially, our national "personal identification number." Unfortunately, there's no protection mechanism included with the SSN-- like a PIN or password-- so if someone has your SSN, they can potentially do a great deal of damage to you, for example by opening lines of credit. The criminal report does not include SSNs for that very reason.

With regard to police reports, please remember that the United States has roughly half the land area, and half the population, of the entire European Union. This makes each state roughly equivalent to a country in the EU (more or less). This is not really a coincidence: each state was originally intended to be a semi-autonomous unit, like a country, with a Federal Government acting as a glue to hold the whole thing together, ensure the states play nice with each other, and provide protection from-- and collective bargaining with-- other countries.

The autonomy between states is largely intact today, so there isn't a whole lot of data sharing-- like between police departments and other non-federal law enforcement organizations-- and what sharing exists is often only between the LE organizations themselves, or is provided by private companies that 'scrape' the publicly available information from each LE organization.

This makes it difficult for a company in one state (for example Ohio) to get a comprehensive criminal background check on someone who may have lived or passed through any of the other forty-nine states (plus non-continental territories like Puerto Rico or Guam).

I had a similar situation, but in my case a background check for my name returned a woman in Illinois, because the female version of my name just tacks on le at the end, and whoever did the background search didn't check it over.

So I got a phone call from my prospective employer asking when I was convicted of a marijuana-related misdemeanor in Quincy, IL. I had to call the circuit court, the county sheriff, and the city police dept. and have them fax in affidavits that said I had never been arrested or convicted of any crimes in that city. It was a long and painful process, and it tainted the hiring team against me just because once they were told I was a felon, they believed I was even after I showed them proof I was not.

Yeah, it's totally ridiculous that the burden of proof is on you when the agency returned a result that didn't actually match your name. The company performing the background check should be responsible for error-correction costs, and once again punitive costs seem appropriate here since they damaged your ability to secure employment based on their mistake.

I would argue that the prospective employer should also be punished in a situation where they refused to hire you based on a report that doesn't match your name or your sex, except that then they might bear a grudge against the person who (through no actual fault on the part of said prospective employee) cost them money.

The main issue for me is that LexisNexis successfully found the correct credit report (which included his middle initial) for David Smith using his social security number but did not use that to eliminate the criminal background check report for David Oscar Smith.

To me, that alone shows willful negligence and is worthy of the punitive damages…

Defamation is defamation is defamation. LexisNexis dissemination false information that directly affected someone negatively. There is no grounds for the court to forgive the company. If the company doesn't want to get sued, then it will have to provide the correct information 100% of the time. Any time it doesn't, it should expect to be sued and lose the case.

Defamation is defamation is defamation. LexisNexis dissemination false information that directly affected someone negatively. There is no grounds for the court to forgive the company. If the company doesn't want to get sued, then it will have to provide the correct information 100% of the time. Any time it doesn't, it should expect to be sued and lose the case.

Ianal, but I'm pretty sure defamation requires willful intent. This just sounds like an unintentional fuckup - a very bad one, to be sure, but it doesn't sound to me like either party set out with the intention of harming Smith.

Both the trucking company and LN deserve to be punished. But pursuing charges that probably wouldn't stand seems wasteful.

In Denmark, you'll be asked to provide a police report that your slate it clean. This only covers the last 5 years though, and there's nothing the employer can do about that.

Generally you'll only be asked for a criminal record, if you're applying for a job that doesn't require an education, interestingly enough.

If you're applying for a position that involves dealing with children. Your future employer is required by law to investigate whether you have any relevant convictions. They can do so with your permission. Those kind of records go back 20 years AFAIK.

The United States has more of its population in prison than any other country in the world. There are at least three times as many on parole.

That's a lot of people, folks.

Background checks for past criminal activity should NEVER be a major criteria for getting a job. But it's usually the first thing that's used to deny someone a job, regardless of their other qualifications. So what they hell are they supposed to do?

They go back and commit more crimes, usually to simply get by (and often turn back to drugs because it's a bitch trying to find work all day and not getting by).

Vice arrests are especially troubling as a yardstick for consideration for employment.

Sentences for convictions are paid when someone is taken off parole and have served their time. If we want to weld shut the revolving door of recidivism, it has to be made a crime to deny someone employment based SOLELY on a past (and subsequently fully paid to society) criminal history.

Thank god I'm retiring and the end of the month. I stopped looking for "regular work" twenty years ago (around the time I turned 40) because no one would hire me despite a good education, experience and background. Age discrimination lawsuits are impossible to prove. Instead I started my own business that actually thrived BECAUSE I was older, steadier and more reliable (not to mention knowledgeable in what I was doing).

I couldn't imagine trying to find a job as a convicted felon (or even someone convicted of a misdemeanor) in today's absolutist, no forgiveness, "I can discriminate because no one can prove I did" society. Everyone deserves a second chance. But our society makes it so they don't get even that.

Truly a sad state of affairs here. This story exemplifies how awful it really is.

The United States has more of its population in prison than any other country in the world. There are at least three times as many on parole.

That's a lot of people, folks.

Background checks for past criminal activity should NEVER be a major criteria for getting a job. But it's usually the first thing that's used to deny someone a job, regardless of their other qualifications. So what they hell are they supposed to do?

They go back and commit more crimes, usually to simply get by (and often turn back to drugs because it's a bitch trying to find work all day and not getting by).

Vice arrests are especially troubling as a yardstick for consideration for employment.

Sentences for convictions are paid when someone is taken off parole and have served their time. If we want to weld shut the revolving door of recidivism, it has to be made a crime to deny someone employment based SOLELY on a past (and subsequently fully paid to society) criminal history.

Thank god I'm retiring and the end of the month. I stopped looking for "regular work" twenty years ago (around the time I turned 40) because no one would hire me despite a good education, experience and background. Age discrimination lawsuits are impossible to prove. Instead I started my own business that actually thrived BECAUSE I was older, steadier and more reliable (not to mention knowledgeable in what I was doing).

I couldn't imagine trying to find a job as a convicted felon (or even someone convicted of a misdemeanor) in today's absolutist, no forgiveness, "I can discriminate because no one can prove I did" society. Everyone deserves a second chance. But our society makes it so they don't get even that.

Truly a sad state of affairs here. This story exemplifies how awful it really is.

This is, indeed, a very serious problem. We're locking people into a career of criminality, with no escape possible.

It would probably be wise to seal all police records more than, say, two years old from public inquiry, possibly with a handful of exceptions for certain very egregious felonies. Police could still have access to them, but these checks made for employment purposes would not.

I believe proposals like this have been made in some states, but have been hooted down by the usual nutjobs in the name of their erstwhile god.

You know I get background checks but now with the credit checks it's gotten a bit absurd. It doesn't matter what job you apply for they want to check you credit. To be denied a job before credit is ridiculous. It doesn't inform the character of the person. They don't know anything about a debt or if it's even valid but they will send you packing anyways.

My wife was worried about this because she had been in dispute with a bank. She closed the account then a couple months later auto insurance attempted to pull money from it even though they had current info. They tried a bunch of times and the bank (citizens) reopened the account and charged her insufficient find fees. $300 worth.

Now call me crazy but doesn't that seem a little... unethical? Not only that but instead of contacting us the bank waited and sold the debt off to collections. We didn't even find out any of it happened until we opened an account with a credit union 2 years later...2 years!

You know I get background checks but now with the credit checks it's gotten a bit absurd. It doesn't matter what job you apply for they want to check you credit. To be denied a job before credit is ridiculous. It doesn't inform the character of the person. They don't know anything about a debt or if it's even valid but they will send you packing anyways.

My wife was worried about this because she had been in dispute with a bank. She closed the account then a couple months later auto insurance attempted to pull money from it even though they had current info. They tried a bunch of times and the bank (citizens) reopened the account and charged her insufficient find fees. $300 worth.

Now call me crazy but doesn't that seem a little... unethical? Not only that but instead of contacting us the bank waited and sold the debt off to collections. We didn't even find out any of it happened until we opened an account with a credit union 2 years later...2 years!

We are more diligent checking credit reports these days

The reasoning behind employment credit checks is 1) an unseemly amount of debt makes you a higher risk for crimes involving embezzlement, and 2) a spotty history of repayment may indicate irresponsibility and poor planning in other areas beyond your personal finances.

Not saying those are really legitimate justifications, but that's what's held out. FWIW, they're better justifications than those offered for rejecting those with most criminal backgrounds, which amount to, "Well, he broke the law in the past," which unless the law is somehow related to the position being applied for seems thin, at best.

The problem I see is that Americans complain about crime rates and recidivism. Yet, nobody wants to hire anyone who has ever made the slightest misstep.

That is indeed a problem. As noted above, attempts to address it - by curtailing public access to criminal records after some period of time, for instance - have been met with howls of protest from the religious right, who seem to delight in that whole Hellfire For All Eternity thing more than a little too much, and who want to get started on it right now, using their own hands to inflict the tortures of damnation.

My name is "Kevin Jones" and this happens every time I apply for a job that requires some kind of background check. Even with my middle name included, it occurs. It has definitely slowed down the hiring process for me.

I'm glad it's not just me, but I'm also disappointed this is happening to so many people.

Smaller employers also sometimes do "DIY" background checks where they just go to some website that scrapes public information. Those websites are careful to say you shouldn't make hiring decisions based on the results, but many do anyway.

If my name were Jones, I'd name my kid Zebulun or Andromeda.

Not just because there wouldn't be a lot of others with the same last name, either.

I personally agree with the initial ruling that included punitive damages, since as stated Lexis had information (the middle initial) that conflicted with the data they reported (with middle name "Oscar"). I'm not a lawyer, though, so I don't know what the standard is for "willful" -- someone in the company noting the discrepancy but the report being sent out anyway?

The standard for "wilful" is that you intentionally broke the law.

Driving 10 miles an hour over the speed limit makes you guilty of a crime. Doing it when you *know* the speed limit makes you wilfully guilty. If you contest your speeding fine in court and can convince the judge that the street was inadequately signed, you'll probably get a reduced fine - maybe even no fine at all.

You're still guilty of exceeding the speed limit, but you're not wilfully guilty.

Since our laws are so complicated, even a lawyer trained in a specific area of the law doesn't always know if their client is guilty or innocent. So, you can get a slap on the wrist ($75,000 fine instead of $375,000 in this case) if you can demonstrate that you believed you were following the law.

In legislation where confusion is common (for example copyright), there are explicit instructions how a judge/jury should rule depending if the guilty party was wilful or not.

This company is basically in trouble because they made the middle name field optional instead of required. Making it optional is reasonable, not everybody has a middle name.

You know I get background checks but now with the credit checks it's gotten a bit absurd. It doesn't matter what job you apply for they want to check you credit. To be denied a job before credit is ridiculous. It doesn't inform the character of the person. They don't know anything about a debt or if it's even valid but they will send you packing anyways.

My wife was worried about this because she had been in dispute with a bank. She closed the account then a couple months later auto insurance attempted to pull money from it even though they had current info. They tried a bunch of times and the bank (citizens) reopened the account and charged her insufficient find fees. $300 worth.

Now call me crazy but doesn't that seem a little... unethical? Not only that but instead of contacting us the bank waited and sold the debt off to collections. We didn't even find out any of it happened until we opened an account with a credit union 2 years later...2 years!

We are more diligent checking credit reports these days

Sounds like Citizens Bank needs to go on the "Investigate" list with the JD along with Wells Fargo. That's not just unethical, it's probably illegal.

I personally agree with the initial ruling that included punitive damages, since as stated Lexis had information (the middle initial) that conflicted with the data they reported (with middle name "Oscar"). I'm not a lawyer, though, so I don't know what the standard is for "willful" -- someone in the company noting the discrepancy but the report being sent out anyway?

The standard for "wilful" is that you intentionally broke the law.

Driving 10 miles an hour over the speed limit makes you guilty of a crime. Doing it when you *know* the speed limit makes you wilfully guilty. If you contest your speeding fine in court and can convince the judge that the street was inadequately signed, you'll probably get a reduced fine - maybe even no fine at all.

You're still guilty of exceeding the speed limit, but you're not wilfully guilty.

Since our laws are so complicated, even a lawyer trained in a specific area of the law doesn't always know if their client is guilty or innocent. So, you can get a slap on the wrist ($75,000 fine instead of $375,000 in this case) if you can demonstrate that you believed you were following the law.

In legislation where confusion is common (for example copyright), there are explicit instructions how a judge/jury should rule depending if the guilty party was wilful or not.

This company is basically in trouble because they made the middle name field optional instead of required. Making it optional is reasonable, not everybody has a middle name.

I don't, but I've considered getting my name legally changed (to Shavano Waytogo Gobsmack, obviously!) to simplify my life.